Justin Hattingh Article published in IOL News!
Johannesburg – Workers who falsely accuse fellow employers and fellow employees of racism could be dismissed, a senior legal advisor has warned.
Justin Hattingh, Strata-g Labour Solution’s senior legal advisor, said employers could charge workers who lied about racism in the workplace.
Hatting said racism was intolerable in the South African workplace, and this was backed up with case law from the Labour Court and Labour Appeal Court.
“The case of SACWU and another vs NCP Chochems (Pty) Ltd (2007, 7 BLLR 663) is such a case. The employee was attending a meeting when he unjustifiably accused a colleague of racism and threatened to call for his dismissal. The employee was then dismissed for having made a false allegation of racism.
“He then referred a dispute regarding an unfair dismissal to the bargaining council where the arbitrator upheld the fairness of the dismissal. The employee, not being happy with the decision of the arbitrator, thereafter took the matter to the Labour Court where it was decided that ‘falsely accusing a person of racism threatens racial harmony at the workplace’. It is racially offensive, abusive and insulting and such accusations, therefore, deserve strong discipline and the court upheld the dismissal,” Hattingh explained.
In another case, Oerlikon Electrodes SA vs CCMA, the Labour Court was asked to review a CCMA’s commissioner’s award calling for dismissal of an employee who had used racist language.
“The arbitrator had found the dismissal to be unfair partly because the employer’s disciplinary code did not provide for dismissal on a first offence of using racist language. The Labour Court found that the employee had admitted to calling a repairman of a service provider a “Dutchman” and had further admitted that this was a derogatory term. The employer’s disciplinary code did require two warnings before dismissal could be implemented. However, the employer was not required to follow its disciplinary code rigidly. The employer had the right to deviate from its disciplinary code when circumstances called for this. The CCMA commissioner had improperly interfered with the employer’s right to impose discipline. The dismissal was, as a result, found to be fair.
Hattingh said the judgment showed that racism was not to be tolerated in the South African workplace.
“Employees may, under certain conditions, be fired even if the employer’s disciplinary code does not provide for dismissal,” said Hattingh.
He added: “Both employees and employers need to be aware of the seriousness of making racial comments or allegations in the workplace. South African courts don’t take too lightly the matter of racism, and seek to send a clear message that even those found guilty of falsely making such claims face the full might of the law,” he said.